From the “On the Civil Side Blog,” please read this important follow up blog by Professor LaToya Powell. Professor Powell discusses what the court must do to comply with the new statute’s requirement that only the court may impose confinement. The new juvenile code reform will take effect on December 1, 2015.
Over the next two months, we will be blogging about the new Juvenile Code Reform law (sometimes referred to as House Bill 879, or Session Law 2015-58). The law is effective for offenses committed on or after December 1, 2015. The three blogs will track the three Parts of the law: Due Process Changes, Reduce Further Entry, and Juvenile Confinement. Each blog will provide a brief overview of the new law, but focus on tips for juvenile defenders. Other materials will be linked as appropriate.
Part I, Due Process Changes, makes the following changes and additions to the Juvenile Code:
- Section 1.1: Amends NCGS 7B-2101(b) raising the age that an in-custody confession or admission may be admissible from 14 to 16 only when a parent, guardian or custodian or attorney is present
- Section 1.2: Amends NCGS 7B-2202(f) clarifying that there shall be a separate adjudicatory hearing if the court does not find probable cause for a felony offense but finds probable cause for a misdemeanor offense
- Section 1.3: Amends NCGS 7B-2203(d) clarifying that there shall be a separate adjudicatory hearing if the court finds probable cause but does not transfer a case to superior court
- Section 1.4: Creates NCGS 7B-2408.5 providing a procedure for a motion to suppress in adjudicatory hearings, very similar to the procedure in adult criminal cases in superior court
Here are tips defenders should consider in representing clients under the new law:
- Motions Practice – Defense counsel should ensure that, if their client was in custody at the time a statement was made to a law enforcement officer, there was a parent, guardian, or attorney present, and file a motion to suppress any evidence obtained in violation of the juvenile’s rights to preserve the record for appeal. Note the sequence of the procedures if the motion is filed prior to the adjudicatory hearing. Sample motions can be found on the Office of the Juvenile Defender website. Note that G.S. 7B-2408.5 also references the exclusionary rule in G.S. 15A-974, requiring the exclusion of evidence obtained in substantial violation of statutory requirements.
- Probable Cause and Transfer – Defense counsel should ensure that a separate adjudicatory hearing is held following a probable cause hearing that results in a lesser offense or does not continue to a transfer hearing, or a transfer hearing that results in the case remaining in juvenile court. If not prepared to move forward with the adjudicatory hearing, counsel should move for the adjudicatory hearing to be held on a separate date.
- a quick-reference table describing the new law
For those interested, please find two links below regarding Montgomery v. Louisiana. Interestingly, the Court spent most of the argument debating whether it had jurisdiction to hear the case, than on the issue of retro-activity:
This morning the United States Supreme Court will hear oral arguments in Montgomery v. Louisiana to determine whether their decision in Miller v. Alabama (2012), holding that a sentence of mandatory life without parole for juveniles convicted of murder is unconstitutional, is retroactive. The result of the case could mean new sentencing hearings for dozens of juvenile prisoners in North Carolina. To learn more about the case, consider the following resources:
The Office of Juvenile Justice and Delinquency Prevention has released a Bulletin entitled Child Forensic Interviewing: Best Practices. Although the Bulletin seems to be intended for forensic interviewers and victim advocacy centers, it contains information helpful to defenders representing youth charged with sex offenses. The Bulletin clearly lays out best practices for interviewing children in cases of alleged abuse, and provide defenders with questions to ask interviewers and advocates to determine credibility and consistency with accepted best practices. Some examples of useful information include:
- professionals should have formal initial and ongoing forensic interview training
- forensic interviewers should be trained in multiple models and use a blend of models individualized to the needs of the child
- the forensic interview should be developmentally sensitive and legally sound, conducted by a trained, neutral professional using research and practice informed techniques
- though maturity increases a child’s vocabulary, terminology for sexual encounters, especially in forensic and legal matters, made be still be difficult to fully comprehend
- effective forensic evaluations should occur soon after the alleged incident, and be recorded for legal scrutiny
- materials that encourage play or fantasy are uniformly discouraged
- interviewers should used open-ended questions appropriately to support the child’s experience in their own words
- introducing information or posing options to youth is discouraged
Three new reports were released addressing special juvenile populations:
- Gender Injustice – System-Level Juvenile Justice Reforms for Girls is a comprehensive report on girls in the juvenile justice system underscores deeply rooted, systemic gender injustice
- Lesbian, Gay, Bisexual and Transgender Youth in the Juvenile Justice System is a comprehensive practical guide provides juvenile justice agencies with the tools to meet their obligation to ensure the safety and well-being of LGBT youth in their care
- Locked In: Interactions with the Criminal Justice and Child Welfare Systems for LGBTQ Youth, YMSM, and YWSW Who Engage in Survival Sex is a report focusing on LGBTQ youth who become involved in the commercial sex market to meet basic survival needs, describing their experiences with law enforcement, the justice system, and the child welfare system